RE SRI LESTARI HANDAYANI

CAMP 368/2021

[2022] HKCA 1038

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 368 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1900 of 2018)

________________________

__________________________

________________

JUDGMENT

________________

Hon Chu JA (giving the Judgment of the Court):

1.  On 3 December 2021, this Court handed down our judgment ([2021] HKCA 1790) refusing to extend the time for the applicant to appeal the decision of Deputy High Court Judge Lung given on 4 August 2020 which refused to give her leave to apply for judicial review.

2.  On 30 May 2022, the applicant filed a notice of motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal. She has also put in a written submission to support the application.

3.  Having considered the applicant’s notice of motion, affirmation and written submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing. We have therefore proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this case and the applicant’s claim has been set out in our judgment. We will not repeat them.

5.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from. Section 24(5) of the Ordinance further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

6.  The applicant’s notice of motion is late by five months, which is serious delay. The applicant stated in her affirmation that she did not receive the judgment in time. The Court record shows that the judgment and the sealed order were mailed to the applicant on the day it was handed down (i.e., 3 December 2021) and have not been returned by the post office. As the applicant has given no details of when she received the judgment and why it reached her late, we do not find the delay to have been satisfactorily explained.

7.  We turn next to consider the merits of the intended appeal. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance provides that leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

8.  The notice of motion stated the following in support of the application:

(1)  There is some error in law in the decision.

(2)  The decision maker only relied on country of origin information and facts that favour the rejection of the applicant’s claim.

(3)  Actual situation is different from what is stated in the country of origin information,

(4)  The officers and the court ignored overwhelming evidence of violence committed to minorities.

(5)  The decision betrays a formulaic approach and is an unfair assessment of the danger of the applicant’s life and is clearly unreasonable.

9.  The written submission is the same as that put forward in support of the renewed application for leave to appeal (see [17] of our judgment). The only addition is a quotation from R v Ministry of Defence ex p Smith [1996] QB 517 at 554.

10.  We are of the view that the matters set out in the notice of motion and affirmation do not afford any basis for granting leave to appeal. Importantly, they do not show that the intended appeal involves any question of great general or public importance. Further, they are general and vague assertions and it has not been demonstrated how the legal principles cited in the written submission relate to the present case. We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

11.  As the statutory requirements for giving leave to appeal are not met, it is futile to extend the time for the filing of the notice of motion. Accordingly, we dismiss the notice of motion.